BC Injury Law and ICBC Claims Blog

Soft Tissue Injuries “Substantially Resolved” After 5 Years Given $45,000 Non-Pecuniary Assessment

Adding to this site’s soft tissue injury database, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for soft tissue injuries that “substantially resolved” in about 5 years.

In the recent case (Nguyen v. Bhatti) the Plaintiff was involved in a 2012 collision caused by the Defendant.  The Plaintiff suffered various soft tissue injuries which, the court found, were largely improved by the time of trial.  The Court assessed non-pecuniary damages at $45,000 and reduced this by 10% finding the Plaintiff failed to mitigate damages by not seeking out some treatments which could have assisted.

In arriving at this assessment Madam Justice Fitzpatrick provided the following reasons:

[126]     Having considered the entirety of the evidence, I conclude the following in relation to the injuries asserted by Mr. Nguyen:

  1. a)Pre-existing injuries: I find that Mr. Nguyen had snoring and sleep issues well before the accident which negatively affected his mental cognition (ability to concentrate, memory issues and his reported “fogginess”) and caused fatigue and lethargy. I do not accept the evidence of the Nguyens that there were no sleeping problems prior to the accident. Ms. Nguyen describes her husband’s sleeping patterns before the accident as “normal”. Nevertheless, the medical records reveal a significant snoring problem. Even Ms. Nguyen confirmed that when he snored, she often had to poke him to wake him up and stop. This could only have contributed to a less than restful sleep, which he now attributes solely to the accident. Finally, there is no medical evidence to support that these sleeping and cognition issues, to the extent that they continued after July 2012, are linked to the accident: Deo v. Wong, 2008 BCCA 110 at paras. 19-20, leave to appeal refused [2008] S.C.C.A No. 229;
  2. b)Neck, back and right shoulder: I accept that Mr. Nguyen suffered soft tissue injuries in these areas, which was an aggravation of his injuries arising from the 2009 accident which were continuing to some extent in July 2012. I find that Mr. Nguyen was greatly improved in these areas by late 2014/early 2015 and that he continued to improve after that time. I reject Mr. Nguyen’s evidence that he remains in constant daily neck, shoulder and back pain at this time. Largely based on the testing of Dr. Marks in April 2017 and Dr. Wee’s notes arising from the May 2017 visit, I find that his symptoms were substantially resolved by the spring of 2017;
  3. c)Other injuries: the defence made submissions regarding complaints identified by Dr. Wee relating to Mr. Nguyen’s right arm and elbow. As Mr. Nguyen did not assert these as a compensable injury at this trial, I will not address them further. Mr. Nguyen did assert injury to both shoulders, although Dr. Wee confirmed only injury to his right shoulder arising from the accident. Dr. Lee’s opinion does not provide any clarification in respect of this alleged injury. I accept that the first indication of any left shoulder injury only arose in September 2015 when he reported to Dr. Rapoport that he was having trouble in that area only 5-6 weeks prior. There is no medical evidence to support that he had any ongoing left shoulder injury as of September 2015 arising from the accident. I agree with the defence that if such an injury arose in 2015, it was unrelated to the accident.

[161]     In my view, the cases cited by the defence are more in line with Mr. Nguyen’s injuries, the effects on his life and the extent of his recovery, as per my findings above. I award the sum of $45,000 for non-pecuniary damages, less a 10% reduction for the failure to mitigate, resulting in a net award of $40,500.

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